The postal address stated in the insurance policy does not have to be the same as the insured location. An adjoining parcel of land belonging to the policyholder may also be covered by the insurance if a separation is not apparent on site.
It is established that the defendant is obliged to reimburse the costs incurred and still to be incurred for the removal of fallen trees on the parcels 26 and 42, as well as the creek parcel no. 41 (insofar as trees are standing or lying here), district E, parcel 4, due to the damage event of January 18, 2007, in accordance with the conditions.
The defendant shall bear the costs of the legal dispute in accordance with an amount in dispute of up to € 13,000.00.
The judgment is provisionally enforceable against security amounting to 110% of the amount to be enforced in each case.
With her claim, the plaintiff is seeking compensation from the defendant as her residential building insurer for damages arising from storm damage on January 18, 2007.
On January 5, 2004, the plaintiff applied to the defendant through the agency Q for the amendment of an existing linked residential building insurance policy for the insured property C in X at the sliding replacement value subject to the defendant’s VGB 2002 and its special conditions for residential building insurance (living space model one/two-family houses). In the written application form dated 05.01.2004, for further details of which reference is made to the copy in the court files (Annex B1 to the statement of 23.07.2007), the insured property is specified as “X, C”. As an extension of the existing insurance cover, expenses for the removal of fallen trees on the insured property were indisputably to be covered for the insured risks of storm and hail, among others.
The defendant issued a supplementary insurance policy dated 20.01.2004. In the insurance policy, the place of insurance is also designated as “X, C”. The included clause no. 21 of the defendant’s special conditions reads:
“21 Expenses for the removal of fallen trees
1. in extension of § 2 No. 1 VGB 2002, the insurer shall reimburse the necessary costs for the removal, transportation and disposal of fallen trees on the insured property caused by lightning or storm, insofar as natural regeneration is not to be expected. Trees that have already died are excluded from the insurance.
2. the compensation payment is limited in accordance with No. 1″
For details of the contractual agreements between the parties, reference is made to the supplementary insurance policy dated January 20, 2004 (attachment to the statement of claim), a copy of which is on file with the court, and the applicable terms and conditions of the defendant (attachment to the statement of claim – VGB 2002 – and attachment B2 to the statement of claim dated July 23, 2007 – Special Terms and Conditions -).
According to the land register of E, sheet ###, the plaintiff is the owner of the land parcels 26, 41 and 42 in the district of E, parcel 4. Parcel 26 is the yard and building area built with the plaintiff’s residential building with the postal address “C”. There is a forest on parcel 42 and parcel 41 is a stream. With regard to the details of the location of the plaintiff’s properties, reference is made to the base map on file (Annex B4 to the statement of 23.07.2007).
On January 18, 2007, storm “Kyrill” caused damage to parcel 42 due to fallen trees, which damaged a fence on the property, among other things.
The plaintiff reported the loss event to the defendant by telephone, by fax loss report dated 19.01.2007 and by registered letter with a loss report form, the details of which are set out in Annex B5 to the statement of 23.07.2007.
The agency Q requested the plaintiff to submit a written cost estimate, which the plaintiff had prepared by the company S in F on January 24, 2007 and forwarded to the defendant’s agency in a letter dated January 29, 2007. The quotation from the company S was for damage repair costs amounting to € 15,750.00 net (attachment to the statement of claim).
After receiving the offer from its regional office in E2, the defendant requested a settlement offer and named two companies, including H in E2, which stated in a letter dated March 1, 2007 that it did not have the necessary machinery and equipment to carry out the work on the plaintiff’s property.
By fax dated March 2, 2007, the defendant’s agency informed the plaintiff that, after consultation with the claims handler, it had been decided that the plaintiff could have the damage repaired by the company S in accordance with the cost estimate already available. This notification was based on a telephone consultation between agent Q and the representative of the defendant’s regional office, witness W, which witness W confirmed to Q in an e-mail dated March 4, 2007 (Annex B7 to the pleading dated July 23, 2007) to the effect that company S could begin with the work in accordance with the cost estimate of January 24, 2007, provided that the trees were located on the insured property and a written declaration from the alternatively named companies that the work could not be carried out due to a lack of heavy equipment was submitted.
On March 6, 2007, a site inspection was then carried out by the witness W, on the basis of which the witness W prepared a damage report of the same day, the details of which are shown in the copy in the court file (annex to the statement of claim = annex B9 to the pleading of July 23, 2007).
The course and cause of the damage is described in section 3:
“In this case, too, the damage is due to “Kyrill”.
The plot of land comprises approx. 6000 sqm. The semi-detached house is located on the street side. To the rear is a small wood with a stream.
The storm blew down or broke off some trees. The falling trees also damaged some of the wire mesh fencing along the course of the stream. Some trees have fallen into the stream and are partially blocking the stream bed.
The work offered according to KVA S, F, dated 24.01.07 will be carried out by the company itself.”
Section 4.10 also states:
“Copy of the building application dated 06.05.98 and excerpt from the city map dated 06.05.98 follows.”
In an e-mail dated March 7, 2007, the defendant also asked the plaintiff to send an excerpt from the land register, which the plaintiff had already sent by fax via her husband, the witness T, on March 6, 2007.
In a letter dated March 21, 2007, the defendant then presented the plaintiff with an alternative offer from the company Garten- und Landschaftsbau X in L dated March 7, 2007, which was for removal costs in the net amount of € 9,280.00, and also informed the plaintiff without further justification, setting a deadline in accordance with § 12 para. 3 VVG, that it could not grant insurance cover for the claim.
The plaintiff sent the defendant a letter dated March 27, 2007 from its current legal representative setting a deadline of April 10, 2007 and a further letter dated April 19, 2007 setting a deadline of April 25, 2007 for payment. No payments were made by the defendant.
With her claim, the plaintiff initially sought compensation for the damages incurred on the basis of the cost estimate from S dated January 24, 2007 in the net amount of € 15,750.00. She amended her claim in a statement dated March 26, 2008. It now seeks a declaration that the defendant is obliged to reimburse the costs incurred and to be incurred for the removal of the fallen trees as a result of the damage event in accordance with the conditions.
The plaintiff is of the opinion that parcel 42 is included in the cover. In this regard, she claims that when she applied for insurance cover, she was not at all aware of the exact location of the boundary between parcels 26 and 42; the entire property has a high tree population, which was also the reason for the requested extension of the insurance cover, which the defendant’s agency recommended. She further claims that the defendant’s agency had already informed her by telephone on February 8, 2007 that the plaintiff could begin with the clearing work. The procedure was followed accordingly in the subsequent period, with work being carried out by the plaintiff itself, which the defendant denies with ignorance.
Finally, the plaintiff seeks a declaration that the defendant is obliged to reimburse the costs incurred and still to be incurred as a result of the loss event of January 18, 2007 for the removal of fallen trees on parcels 26 and 42, as well as on the creek parcel no. 41 (insofar as trees are standing or lying here), district E, parcel 4, in accordance with the conditions.
The defendant requested that the action be dismissed.
She is of the opinion that parcel 42 is not insured, as only the property with the postal address “X” was named as the place of insurance when the application was submitted; this in turn is identical to parcel 26. It denies that its agency has issued a binding settlement commitment and claims, which the plaintiff denies with ignorance, that its agency has no authority to settle. She also disputes that the costs according to the cost estimate of 24.01.2007 are customary and reasonable and is of the opinion that a fictitious settlement is not possible within the framework of the cost insurance.
Please refer to the content of the written submissions exchanged between the parties and the documents submitted for the file for further details of the facts and the state of the dispute.
Reasons for the decision:
The action is admissible and well-founded with the most recent application.
The admissibility of the plaintiff’s request for a declaratory judgment does not raise any concerns with regard to the interest in a declaratory judgment required pursuant to Section 256 (1) ZPO. Although there is generally no interest in a declaratory judgment if the plaintiff could achieve the same objective with an action for performance, there is no general subsidiarity of the action for declaratory judgment vis-à-vis the action for performance. It has been clarified by the highest courts that an action for a declaratory judgment remains admissible if, from the point of view of procedural economy, it can be expected to lead to a meaningful and appropriate settlement of the issues that have arisen, which is particularly the case if the defendant justifies the expectation that it will meet its legal obligations in response to a legally binding declaratory judgment without the need for a further enforcement order for payment, which can always be assumed in the case of large insurance companies (see most recently BGH, judgment of 15.03.2006 – IV ZR 4/05; see also BGH, NJW-RR 2005, 619). The adjudicating chamber agrees with this in its established case law.
The action is also successful on the merits. The plaintiff is entitled to a claim for compensation against the defendant under the combined residential building insurance taken out with the defendant on the basis of §§ 1, 149 et seq. VVG in conjunction with Clause 21 of the defendant’s Special Conditions, according to which the defendant in
extension of § 2 No. 1 VGB 2002 promises compensation for the necessary costs for the removal, transportation and disposal of fallen trees on the insured property caused by storms, among other things.
There is no dispute between the parties that trees on a plot of land owned by the plaintiff fell as a result of hurricane “Kyrill”. The defendant merely claims that the location of the damage is on parcel 42 – which in its opinion is not insured – which is directly adjacent to parcel 26, which in turn bears the postal address “C” designated as the place of insurance in the insurance application and certificate.
The defendant cannot be heard with this objection.
It is the unanimous opinion that the place of insurance is not necessarily to be equated with the postal address referred to in the insurance policy (see BGH, VersR 1966, 673 for an industrial fire insurance; Kammer, judgment of February 28, 2006 – 2 O 256/05, juris, for a burglary insurance; Martin, Sachversicherungsrecht, 3rd ed, G III Rn. 1; Burmann/Meyer, in: Münchener Anwaltshandbuch zum Versicherungsrecht, § 7 Rn. 41), rather the information in the insurance policy is only to be considered secondarily if a deviating will of the parties relevant for the determination of the scope of the insurance cover results from the circumstances surrounding the conclusion of the contract (cf. Martin, loc. cit.). Measured against this, the property directly adjacent to the plaintiff’s property with the parcel designation 26 with the parcel designation 42 was also covered by the defendant’s supplementary policy. Parcel 42 is also covered by the place of insurance designated in the insurance policy with the postal address “C”, since it is not the location under land register law that is decisive, but the local conditions and everyday language usage (Martin, loc. cit., G IV para. 26 with further references). According to the Chamber, it is sufficient that the location of the damage is located on the same enclosed or unenclosed property – in the aforementioned sense – as the building insured under the residential building insurance, i.e. that there is a spatial connection (Martin, loc. cit.). The plaintiff has argued, without contradiction, that even when applying for insurance cover, it had no exact knowledge of the course of the land register boundaries and that, from an external point of view, a boundary between the two parcels of land cannot be determined.
However, the defendant rightly points out – without this still being relevant for the decision on the final application – that a settlement according to the cost estimate of the company S of January 24, 2007 is out of the question, since the defendant only promises compensation for costs actually incurred with the clause relevant here and the plaintiff has already not sufficiently demonstrated a promise by the defendant deviating from this, according to which the cost estimate is to be decisive for the calculation of compensation. In particular, the fax from the defendant’s agency dated March 2, 2007 does not contain such a promise. It merely contains the statement that the plaintiff could have the damage repaired by the company S in accordance with the cost estimate. The damage report also does not contain a deviating agreement on the settlement; it only contains the statement that the work offered by company S is to be carried out by the company itself.
(Regional Court Dortmund, judgment 15.5.2008, ref. 2 O 211/07)